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Sunday, December 29, 2013

Today's blog is not written for people who currently have or have had problems with their association managers. Naturally, there are those people and those problems out there and past blogs (and future ones to be sure) have discussed and will discuss what can and should be done when those difficulties occur.However, today's blog is written for those lucky communities who have an unsung hero in the form of their community association manager. You know the type to whom I am referring-the manager who makes the directors' and members' lives a lot easier not only with their constant preparation and attention to detail but also as a result of his or her personality and passion for what they do.A great manager can make the difference between a dysfunctional community and a highly functioning community. A great manager can make the difference between having to pass a special assessment for budget shortfalls and not having to do so. A great manager can create a community where the residents are happy, property values are high and life is good.Showing someone your gratitude usually reaps innumerable benefits to the grantor as well as the grantee. So the question is: do you know of any great community association managers who deserve a little recognition? I know of many who deserve to be recognized and now is your chance. The Manager of the Year is a national awards program sponsored by Association Reserves to honor community association managers who are inspired, inspiring and creative leaders for the communities they serve.Two lucky managers will win $5,000 each for the best On-Site Manager and the best Portfolio Manager. Managers can nominate themselves or they can be nominated by someone else. Nominations are open until January 15th. Winners will be broadcast on May 14, 2014.For more information about this national awards program, please visit www.ManageroftheYear.org.Good luck to all the unsung community association manager heroes out there!

Sunday, December 22, 2013

It is a beautiful Florida day. There is a light breeze blowing, the sun is setting, and it is cool enough to enjoy sitting out on the patio of your condo. You are all set up to sip a cool glass of wine with some friends when your neighbor steps out to enjoy a pack of cigarettes.

Or how about this:

You are walking to your mailbox to pick up your mail and your path takes you by a neighbor walking her dog and smoking.

Or even this:

You are sitting in your living room watching TV when you smell the cigarette smoke coming through from your neighbor's unit.

While smoke is a natural part of life emanating from candles, cooking and the occasional tobacco product, excessive second-hand smoke is becoming a growing problem for many communities. Over the years we have received many inquiries from condominiums, cooperatives and HOAs struggling with the issue of excessive second-hand smoke impacting their residents and employees. Bearing in mind that it is currently difficult and expensive for associations to successfully intervene when residents complain about a neighbor's excessive smoke invading their units, balconies, the corridors and other common areas, CAN is asking for your input in this short survey.

Has your association confronted the issue of second-hand smoke and how have you dealt with it? Do you believe that an association should have tools to intervene when excessive second-hand smoke becomes an issue or is this an area that associations should avoid?

For the communities that have this issue, it creates a serious impact on their residents' lives.

While we have heard from many CAN members that this is a complicated issue, how many of you believe that a legislative change making it easier to amend your documents to regulate or prohibit smoking is warranted?

Please use the following link to take CAN's Secondhand Smoke survey. We will be running this survey until January 10th. We will then compile and report on our findings.

Sunday, December 15, 2013

Recently, a blog reader wrote to tell me that three of the directors on his board refused to cast a vote to approve the association's budget. Apparently these directors did not agree with the increase in assessments created by the new operating budget and, as a result, they decided not to vote at all when it came time to approve the budget. This reader wanted to know if these directors had the right to abstain from casting a vote.

The short answer is NO. Directors have an absolute duty to cast a vote one way or the other on association matters. Directors are elected to undertake the necessary work of the association which often includes casting votes on unpopular matters.

Directors who have a verifiable conflict of interest can abstain from a vote but the occasions when a conflict exists are tied to having a direct or indirect monetary interest in the matter being discussed. Items on which a director simply does not agree do not create a conflict of interest which would require or permit a director's abstention from a vote. On those occasions not rising to the level of a conflict of interest, a director may request that his or her opinions be memorialized in the minutes but he or she must still cast a vote.

Section 718.111, F.S. states that a director of the association who is present at a meeting of its board at which action on any corporate matter is taken shall be presumed to have consented to the action taken unless he or she votes against such action or abstains from voting. A director of the association who abstains from voting on any action taken on any corporate matter shall be presumed to have taken no position with regard to the action. Directors may also not vote by proxy or by secret ballot at board meeting.

Thus, a director refusing to vote without the benefit of an actual conflict of interest which would permit an abstention is actually voting YES to the matter at hand by remaining silent.

Directors who routinely find themselves unable or unwilling to cast votes on unpopular matters must ask themselves why they agreed to serve on the board in the first place. Directors do your duty: it is ok to be wary about a particular subject matter but it is not acceptable to sit silent and allow your fellow directors to vote while you have no legitimate reason not to participate.

Sunday, December 1, 2013

A client recently contacted me with regard to a personnel matter. The community had fallen in love with a particular security guard and while the contract with the security company was slated for termination, the board wanted to hire this guard personally to continue on with them.

Unfortunately for this community, the guard had signed a non-compete agreement with his current employer and, as a consequence, would not be able to accept the association's offer of employment for at least two years.

Has this ever happened to your community?

Non-compete agreements became even more common during the Great Recession when signing an agreement restricting future employment opportunities seemed like a small price to pay for a job. These types of restrictive provisions can be found in all types of industries including those which service community associations, particularly management and security services. With the economy on the upswing, more and more employees are starting to challenge the non-compete agreements they previously signed without much concern.

While most employers can insist on a non-compete agreement from its employees, those same employers must have a legitimate business reason to enforce same. Some legitimate reasons include the employee possessing the company's trade secrets or other proprietary information which cannot be accessed through public means. Trying to protect a company's investment in an employee via specialized training as well as protecting the relationship which the company has created with a client base, existing and potential, is a legitimate reason to enforce a non-compete. Trying to prevent competition is not.

Most non-compete agreements restrict an employee's ability to obtain similar employment within a certain geographic area and within a certain period of time after leaving the company's employ. Lest you fear you will lose your favorite attorney if he or she leaves a particular firm, non-compete agreements have been stricken down by the Florida Bar and other state bar associations as they pertain to attorneys. However, the same is not true for other industries where each agreement will be judged on its own merits. Communities looking to hire personnel should inquire about the existence of any non-compete agreements those candidates may have previously signed. Hiring without having that knowledge can present costly problems for the association including an interruption in services if the employee must be fired and rehired at a future date.

The moral of the story for associations: look before you leap. The moral of the story for employees: understand the long-term consequences a non-compete agreement can present before you sign on the dotted line!

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This blog is intended for general informational purposes only and is not intended to offer legal advice in any form whatsoever. Blog readers are urged to consult their own legal counsel to obtain specific legal advice. The blog author reserves the right to answer or decline to answer any comments. Any answers given to blog comments do not constitute legal advice nor do they create an attorney-client relationship. Offensive or defamatory comments will be removed.